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Sub. H. B. No. 364 As Reported by the House Public Utilities Committee

Sec. 4928.143. (A) For the purpose of complying with section
4928.141 of the Revised Code, an electric distribution utility may
file an application for public utilities commission approval of an
electric security plan as prescribed under division (B) of this
section. The utility may file that application prior to the
effective date of any rules the commission may adopt for the
purpose of this section, and, as the commission determines
necessary, the utility immediately shall conform its filing to
those rules upon their taking effect.

(B) Notwithstanding any other provision of Title XLIX of the
Revised Code to the contrary except division (D) of this section,
divisions (I), (J), and (K) of section 4928.20, division (E) of
section 4928.64, and section 4928.69 of the Revised Code:

(1) An electric security plan shall include provisions
relating to the supply and pricing of electric generation service.
In addition, if the proposed electric security plan has a term
longer than three years, it may include provisions in the plan to
permit the commission to test the plan pursuant to division (E) of
this section and any transitional conditions that should be
adopted by the commission if the commission terminates the plan as
authorized under that division.

(2) The plan may provide for or include, without limitation,
any of the following:

(a) Automatic recovery of any of the following costs of the
electric distribution utility, provided the cost is prudently
incurred: the cost of fuel used to generate the electricity
supplied under the offer; the cost of purchased power supplied
under the offer, including the cost of energy and capacity, and
including purchased power acquired from an affiliate; the cost of
emission allowances; and the cost of federally mandated carbon or
energy taxes;

(b) A reasonable allowance for construction work in progress
for any of the electric distribution utility's cost of
constructing an electric generating facility or for an
environmental expenditure for any electric generating facility of
the electric distribution utility, provided the cost is incurred
or the expenditure occurs on or after January 1, 2009. Any such
allowance shall be subject to the construction work in progress
allowance limitations of division (A) of section 4909.15 of the
Revised Code, except that the commission may authorize such an
allowance upon the incurrence of the cost or occurrence of the
expenditure. No such allowance for generating facility
construction shall be authorized, however, unless the commission
first determines in the proceeding that there is need for the
facility based on resource planning projections submitted by the
electric distribution utility. Further, no such allowance shall be
authorized unless the facility's construction was sourced through
a competitive bid process, regarding which process the commission
may adopt rules. An allowance approved under division (B)(2)(b) of
this section shall be established as a nonbypassable surcharge for
the life of the facility.

(c) The establishment of a nonbypassable surcharge for the
life of an electric generating facility that is owned or operated
by the electric distribution utility, was sourced through a
competitive bid process subject to any such rules as the
commission adopts under division (B)(2)(b) of this section, and is
newly used and useful on or after January 1, 2009, which surcharge
shall cover all costs of the utility specified in the application,
excluding costs recovered through a surcharge under division
(B)(2)(b) of this section. However, no surcharge shall be
authorized unless the commission first determines in the
proceeding that there is need for the facility based on resource
planning projections submitted by the electric distribution
utility. Additionally, if a surcharge is authorized for a facility
pursuant to plan approval under division (C) of this section and
as a condition of the continuation of the surcharge, the electric
distribution utility shall dedicate to Ohio consumers the capacity
and energy and the rate associated with the cost of that facility.
Before the commission authorizes any surcharge pursuant to this
division, it may consider, as applicable, the effects of any
decommissioning, deratings, and retirements.

(d) Terms, conditions, or charges relating to limitations on
customer shopping for retail electric generation service,
bypassability, standby, back-up, or supplemental power service,
default service, carrying costs, amortization periods, and
accounting or deferrals, including future recovery of such
deferrals, as would have the effect of stabilizing or providing
certainty regarding retail electric service;

(e) Automatic increases or decreases in any component of the
standard service offer price;

(f) Consistent with sections 4928.23 to 4928.2318 of the
Revised Code, both of the following:

(i) Provisions for the electric distribution utility to
securitize any phase-in, inclusive of carrying charges, of the
utility's standard service offer price, which phase-in is
authorized in accordance with section 4928.144 of the Revised
Code; and provisions

(ii) Provisions for the recovery of the utility's cost of
securitization.

(g) Provisions relating to transmission, ancillary,
congestion, or any related service required for the standard
service offer, including provisions for the recovery of any cost
of such service that the electric distribution utility incurs on
or after that date pursuant to the standard service offer;

(h) Provisions regarding the utility's distribution service,
including, without limitation and notwithstanding any provision of
Title XLIX of the Revised Code to the contrary, provisions
regarding single issue ratemaking, a revenue decoupling mechanism
or any other incentive ratemaking, and provisions regarding
distribution infrastructure and modernization incentives for the
electric distribution utility. The latter may include a long-term
energy delivery infrastructure modernization plan for that utility
or any plan providing for the utility's recovery of costs,
including lost revenue, shared savings, and avoided costs, and a
just and reasonable rate of return on such infrastructure
modernization. As part of its determination as to whether to allow
in an electric distribution utility's electric security plan
inclusion of any provision described in division (B)(2)(h) of this
section, the commission shall examine the reliability of the
electric distribution utility's distribution system and ensure
that customers' and the electric distribution utility's
expectations are aligned and that the electric distribution
utility is placing sufficient emphasis on and dedicating
sufficient resources to the reliability of its distribution
system.

(i) Provisions under which the electric distribution utility
may implement economic development, job retention, and energy
efficiency programs, which provisions may allocate program costs
across all classes of customers of the utility and those of
electric distribution utilities in the same holding company
system.

(C)(1) The burden of proof in the proceeding shall be on the
electric distribution utility. The commission shall issue an order
under this division for an initial application under this section
not later than one hundred fifty days after the application's
filing date and, for any subsequent application by the utility
under this section, not later than two hundred seventy-five days
after the application's filing date. Subject to division (D) of
this section, the commission by order shall approve or modify and
approve an application filed under division (A) of this section if
it finds that the electric security plan so approved, including
its pricing and all other terms and conditions, including any
deferrals and any future recovery of deferrals, is more favorable
in the aggregate as compared to the expected results that would
otherwise apply under section 4928.142 of the Revised Code.
Additionally, if the commission so approves an application that
contains a surcharge under division (B)(2)(b) or (c) of this
section, the commission shall ensure that the benefits derived for
any purpose for which the surcharge is established are reserved
and made available to those that bear the surcharge. Otherwise,
the commission by order shall disapprove the application.

(2)(a) If the commission modifies and approves an application
under division (C)(1) of this section, the electric distribution
utility may withdraw the application, thereby terminating it, and
may file a new standard service offer under this section or a
standard service offer under section 4928.142 of the Revised Code.

(b) If the utility terminates an application pursuant to
division (C)(2)(a) of this section or if the commission
disapproves an application under division (C)(1) of this section,
the commission shall issue such order as is necessary to continue
the provisions, terms, and conditions of the utility's most recent
standard service offer, along with any expected increases or
decreases in fuel costs from those contained in that offer, until
a subsequent offer is authorized pursuant to this section or
section 4928.142 of the Revised Code, respectively.

(D) Regarding the rate plan requirement of division (A) of
section 4928.141 of the Revised Code, if an electric distribution
utility that has a rate plan that extends beyond December 31,
2008, files an application under this section for the purpose of
its compliance with division (A) of section 4928.141 of the
Revised Code, that rate plan and its terms and conditions are
hereby incorporated into its proposed electric security plan and
shall continue in effect until the date scheduled under the rate
plan for its expiration, and that portion of the electric security
plan shall not be subject to commission approval or disapproval
under division (C) of this section, and the earnings test provided
for in division (F) of this section shall not apply until after
the expiration of the rate plan. However, that utility may include
in its electric security plan under this section, and the
commission may approve, modify and approve, or disapprove subject
to division (C) of this section, provisions for the incremental
recovery or the deferral of any costs that are not being recovered
under the rate plan and that the utility incurs during that
continuation period to comply with section 4928.141, division (B)
of section 4928.64, or division (A) of section 4928.66 of the
Revised Code.

(E) If an electric security plan approved under division (C)
of this section, except one withdrawn by the utility as authorized
under that division, has a term, exclusive of phase-ins or
deferrals, that exceeds three years from the effective date of the
plan, the commission shall test the plan in the fourth year, and
if applicable, every fourth year thereafter, to determine whether
the plan, including its then-existing pricing and all other terms
and conditions, including any deferrals and any future recovery of
deferrals, continues to be more favorable in the aggregate and
during the remaining term of the plan as compared to the expected
results that would otherwise apply under section 4928.142 of the
Revised Code. The commission shall also determine the prospective
effect of the electric security plan to determine if that effect
is substantially likely to provide the electric distribution
utility with a return on common equity that is significantly in
excess of the return on common equity that is likely to be earned
by publicly traded companies, including utilities, that face
comparable business and financial risk, with such adjustments for
capital structure as may be appropriate. The burden of proof for
demonstrating that significantly excessive earnings will not occur
shall be on the electric distribution utility. If the test results
are in the negative or the commission finds that continuation of
the electric security plan will result in a return on equity that
is significantly in excess of the return on common equity that is
likely to be earned by publicly traded companies, including
utilities, that will face comparable business and financial risk,
with such adjustments for capital structure as may be appropriate,
during the balance of the plan, the commission may terminate the
electric security plan, but not until it shall have provided
interested parties with notice and an opportunity to be heard. The
commission may impose such conditions on the plan's termination as
it considers reasonable and necessary to accommodate the
transition from an approved plan to the more advantageous
alternative. In the event of an electric security plan's
termination pursuant to this division, the commission shall permit
the continued deferral and phase-in of any amounts that occurred
prior to that termination and the recovery of those amounts as
contemplated under that electric security plan.

(F) With regard to the provisions that are included in an
electric security plan under this section, the commission shall
consider, following the end of each annual period of the plan, if
any such adjustments resulted in excessive earnings as measured by
whether the earned return on common equity of the electric
distribution utility is significantly in excess of the return on
common equity that was earned during the same period by publicly
traded companies, including utilities, that face comparable
business and financial risk, with such adjustments for capital
structure as may be appropriate. Consideration also shall be given
to the capital requirements of future committed investments in
this state. The burden of proof for demonstrating that
significantly excessive earnings did not occur shall be on the
electric distribution utility. If the commission finds that such
adjustments, in the aggregate, did result in significantly
excessive earnings, it shall require the electric distribution
utility to return to consumers the amount of the excess by
prospective adjustments; provided that, upon making such
prospective adjustments, the electric distribution utility shall
have the right to terminate the plan and immediately file an
application pursuant to section 4928.142 of the Revised Code. Upon
termination of a plan under this division, rates shall be set on
the same basis as specified in division (C)(2)(b) of this section,
and the commission shall permit the continued deferral and
phase-in of any amounts that occurred prior to that termination
and the recovery of those amounts as contemplated under that
electric security plan. In making its determination of
significantly excessive earnings under this division, the
commission shall not consider, directly or indirectly, the
revenue, expenses, or earnings of any affiliate or parent company.

Sec. 4928.20. (A) The legislative authority of a municipal
corporation may adopt an ordinance, or the board of township
trustees of a township or the board of county commissioners of a
county may adopt a resolution, under which, on or after the
starting date of competitive retail electric service, it may
aggregate in accordance with this section the retail electrical
loads located, respectively, within the municipal corporation,
township, or unincorporated area of the county and, for that
purpose, may enter into service agreements to facilitate for those
loads the sale and purchase of electricity. The legislative
authority or board also may exercise such authority jointly with
any other such legislative authority or board. For customers that
are not mercantile customers, an ordinance or resolution under
this division shall specify whether the aggregation will occur
only with the prior, affirmative consent of each person owning,
occupying, controlling, or using an electric load center proposed
to be aggregated or will occur automatically for all such persons
pursuant to the opt-out requirements of division (D) of this
section. The aggregation of mercantile customers shall occur only
with the prior, affirmative consent of each such person owning,
occupying, controlling, or using an electric load center proposed
to be aggregated. Nothing in this division, however, authorizes
the aggregation of the retail electric loads of an electric load
center, as defined in section 4933.81 of the Revised Code, that is
located in the certified territory of a nonprofit electric
supplier under sections 4933.81 to 4933.90 of the Revised Code or
an electric load center served by transmission or distribution
facilities of a municipal electric utility.

(B) If an ordinance or resolution adopted under division (A)
of this section specifies that aggregation of customers that are
not mercantile customers will occur automatically as described in
that division, the ordinance or resolution shall direct the board
of elections to submit the question of the authority to aggregate
to the electors of the respective municipal corporation, township,
or unincorporated area of a county at a special election on the
day of the next primary or general election in the municipal
corporation, township, or county. The legislative authority or
board shall certify a copy of the ordinance or resolution to the
board of elections not less than ninety days before the day of the
special election. No ordinance or resolution adopted under
division (A) of this section that provides for an election under
this division shall take effect unless approved by a majority of
the electors voting upon the ordinance or resolution at the
election held pursuant to this division.

(C) Upon the applicable requisite authority under divisions
(A) and (B) of this section, the legislative authority or board
shall develop a plan of operation and governance for the
aggregation program so authorized. Before adopting a plan under
this division, the legislative authority or board shall hold at
least two public hearings on the plan. Before the first hearing,
the legislative authority or board shall publish notice of the
hearings once a week for two consecutive weeks in a newspaper of
general circulation in the jurisdiction or as provided in section
7.16 of the Revised Code. The notice shall summarize the plan and
state the date, time, and location of each hearing.

(D) No legislative authority or board, pursuant to an
ordinance or resolution under divisions (A) and (B) of this
section that provides for automatic aggregation of customers that
are not mercantile customers as described in division (A) of this
section, shall aggregate the electrical load of any electric load
center located within its jurisdiction unless it in advance
clearly discloses to the person owning, occupying, controlling, or
using the load center that the person will be enrolled
automatically in the aggregation program and will remain so
enrolled unless the person affirmatively elects by a stated
procedure not to be so enrolled. The disclosure shall state
prominently the rates, charges, and other terms and conditions of
enrollment. The stated procedure shall allow any person enrolled
in the aggregation program the opportunity to opt out of the
program every three years, without paying a switching fee. Any
such person that opts out before the commencement of the
aggregation program pursuant to the stated procedure shall default
to the standard service offer provided under section 4928.14 or
division (D) of section 4928.35 of the Revised Code until the
person chooses an alternative supplier.

(E)(1) With respect to a governmental aggregation for a
municipal corporation that is authorized pursuant to divisions (A)
to (D) of this section, resolutions may be proposed by initiative
or referendum petitions in accordance with sections 731.28 to
731.41 of the Revised Code.

(2) With respect to a governmental aggregation for a township
or the unincorporated area of a county, which aggregation is
authorized pursuant to divisions (A) to (D) of this section,
resolutions may be proposed by initiative or referendum petitions
in accordance with sections 731.28 to 731.40 of the Revised Code,
except that:

(a) The petitions shall be filed, respectively, with the
township fiscal officer or the board of county commissioners, who
shall perform those duties imposed under those sections upon the
city auditor or village clerk.

(b) The petitions shall contain the signatures of not less
than ten per cent of the total number of electors in,
respectively, the township or the unincorporated area of the
county who voted for the office of governor at the preceding
general election for that office in that area.

(F) A governmental aggregator under division (A) of this
section is not a public utility engaging in the wholesale purchase
and resale of electricity, and provision of the aggregated service
is not a wholesale utility transaction. A governmental aggregator
shall be subject to supervision and regulation by the public
utilities commission only to the extent of any competitive retail
electric service it provides and commission authority under this
chapter.

(G) This section does not apply in the case of a municipal
corporation that supplies such aggregated service to electric load
centers to which its municipal electric utility also supplies a
noncompetitive retail electric service through transmission or
distribution facilities the utility singly or jointly owns or
operates.

(H) A governmental aggregator shall not include in its
aggregation the accounts of any of the following:

(1) A customer that has opted out of the aggregation;

(2) A customer in contract with a certified electric services
company;

(3) A customer that has a special contract with an electric
distribution utility;

(4) A customer that is not located within the governmental
aggregator's governmental boundaries;

(5) Subject to division (C) of section 4928.21 of the Revised
Code, a customer who appears on the "do not aggregate" list
maintained under that section.

(I) Customers that are part of a governmental aggregation
under this section shall be responsible only for such portion of a
surcharge under section 4928.144 of the Revised Code that is
proportionate to the benefits, as determined by the commission,
that electric load centers within the jurisdiction of the
governmental aggregation as a group receive. The proportionate
surcharge so established shall apply to each customer of the
governmental aggregation while the customer is part of that
aggregation. If a customer ceases being such a customer, the
otherwise applicable surcharge shall apply. Nothing in this
section shall result in less than full recovery by an electric
distribution utility of any surcharge authorized under section
4928.144 of the Revised Code.
Nothing in this section shall result
in less than the full and timely imposition, charging, collection,
and adjustment by an electric distribution utility, its assignee,
or any collection agent, of the phase-in-recovery charges
authorized pursuant to a final financing order issued pursuant to
sections 4928.23 to 4928.2318 of the Revised Code.

(J) On behalf of the customers that are part of a
governmental aggregation under this section and by filing written
notice with the public utilities commission, the legislative
authority that formed or is forming that governmental aggregation
may elect not to receive standby service within the meaning of
division (B)(2)(d) of section 4928.143 of the Revised Code from an
electric distribution utility in whose certified territory the
governmental aggregation is located and that operates under an
approved electric security plan under that section. Upon the
filing of that notice, the electric distribution utility shall not
charge any such customer to whom competitive retail electric
generation service is provided by another supplier under the
governmental aggregation for the standby service. Any such
consumer that returns to the utility for competitive retail
electric service shall pay the market price of power incurred by
the utility to serve that consumer plus any amount attributable to
the utility's cost of compliance with the alternative energy
resource provisions of section 4928.64 of the Revised Code to
serve the consumer. Such market price shall include, but not be
limited to, capacity and energy charges; all charges associated
with the provision of that power supply through the regional
transmission organization, including, but not limited to,
transmission, ancillary services, congestion, and settlement and
administrative charges; and all other costs incurred by the
utility that are associated with the procurement, provision, and
administration of that power supply, as such costs may be approved
by the commission. The period of time during which the market
price and alternative energy resource amount shall be so assessed
on the consumer shall be from the time the consumer so returns to
the electric distribution utility until the expiration of the
electric security plan. However, if that period of time is
expected to be more than two years, the commission may reduce the
time period to a period of not less than two years.

(K) The commission shall adopt rules to encourage and promote
large-scale governmental aggregation in this state. For that
purpose, the commission shall conduct an immediate review of any
rules it has adopted for the purpose of this section that are in
effect on the effective date of the amendment of this section by
S.B. 221 of the 127th general assembly, July 31, 2008. Further,
within the context of an electric security plan under section
4928.143 of the Revised Code, the commission shall consider the
effect on large-scale governmental aggregation of any
nonbypassable generation charges, however collected, that would be
established under that plan, except any nonbypassable generation
charges that relate to any cost incurred by the electric
distribution utility, the deferral of which has been authorized by
the commission prior to the effective date of the amendment of
this section by S.B. 221 of the 127th general assembly, July 31,
2008.

Sec. 4928.23. As used in sections 4928.23 to 4928.2318 of the
Revised Code:

(A) "Ancillary agreement" means any bond insurance policy,
letter of credit, reserve account, surety bond, swap arrangement,
hedging arrangement, liquidity or credit support arrangement, or
other similar agreement or arrangement entered into in connection
with the issuance of phase-in-recovery bonds that is designed to
promote the credit quality and marketability of the bonds or to
mitigate the risk of an increase in interest rates.

(B) "Assignee" means any person or entity to which an
interest in phase-in-recovery property is sold, assigned,
transferred, or conveyed, other than as security, and any
successor to or subsequent assignee of such a person or entity.

(C) "Bond" includes debentures, notes, certificates of
participation, certificates of beneficial interest, certificates
of ownership or other evidences of indebtedness or ownership that
are issued by an electric distribution utility or an assignee
under a final financing order, the proceeds of which are used
directly or indirectly to recover, finance, or refinance phase-in
costs and financing costs, and that are secured by or payable from
revenues from phase-in-recovery charges.

(D) "Bondholder" means any holder or owner of a
phase-in-recovery bond.

(E) "Financing costs" means any of the following:

(1) Principal, interest, and redemption premiums that are
payable on phase-in-recovery bonds;

(2) Any payment required under an ancillary agreement;

(3) Any amount required to fund or replenish a reserve
account or another account established under any indenture,
ancillary agreement, or other financing document relating to
phase-in-recovery bonds;

(4) Any costs of retiring or refunding any existing debt and
equity securities of an electric distribution utility in
connection with either the issuance of, or the use of proceeds
from, phase-in-recovery bonds;

(5) Any costs incurred by an electric distribution utility to
obtain modifications of or amendments to any indenture, financing
agreement, security agreement, or similar agreement or instrument
relating to any existing secured or unsecured obligation of the
electric distribution utility in connection with the issuance of
phase-in-recovery bonds;

(6) Any costs incurred by an electric distribution utility to
obtain any consent, release, waiver, or approval from any holder
of an obligation described in division (E)(5) of this section that
are necessary to be incurred for the electric distribution utility
to issue or cause the issuance of phase-in-recovery bonds;

(8) Any costs related to issuing or servicing
phase-in-recovery bonds or related to obtaining a financing order,
including servicing fees and expenses, trustee fees and expenses,
legal, accounting, or other professional fees and expenses,
administrative fees, placement fees, underwriting fees,
capitalized interest and equity, and rating-agency fees;

(9) Any other similar costs that the public utilities
commission finds appropriate.

(F) "Financing order" means an order issued by the public
utilities commission under section 4928.232 of the Revised Code
that authorizes an electric distribution utility or an assignee to
issue phase-in-recovery bonds and recover phase-in-recovery
charges.

(G) "Final financing order" means a financing order that has
become final and has taken effect as provided in section 4928.233
of the Revised Code.

(H) "Financing party" means either of the following:

(1) Any trustee, collateral agent, or other person acting for
the benefit of any bondholder;

(2) Any party to an ancillary agreement, the rights and
obligations of which relate to or depend upon the existence of
phase-in-recovery property, the enforcement and priority of a
security interest in phase-in-recovery property, the timely
collection and payment of phase-in-recovery revenues, or a
combination of these factors.

(I) "Financing statement" has the same meaning as in section
1309.102 of the Revised Code.

(J) "Phase-in costs" means costs, inclusive of carrying
charges incurred before, on, or after the effective date of this
section, authorized by the commission before, on, or after the
effective date of this section to be securitized or deferred as
regulatory assets in proceedings under section 4909.18 of the
Revised Code, sections 4928.141 to 4928.144 of the Revised Code,
or section 4928.14 of the Revised Code as it existed prior to July
31, 2008, pursuant to a final order for which appeals have been
exhausted. "Phase-in costs" excludes the following:

(1) With respect to any electric generating facility that, on
and after the effective date of this section, is owned, in whole
or in part, by an electric distribution utility applying for a
financing order under section 4928.231 of the Revised Code, costs
that are authorized under division (B)(2)(b) or (c) of section
4928.143 of the Revised Code;

(2) Costs incurred after the effective date of this section
related to the ongoing operation of an electric generating
facility, but not environmental clean-up or remediation costs
incurred by an electric distribution utility because of its
ownership or operation of an electric generating facility prior to
the effective date of this section, which such clean-up or
remediation costs are imposed or incurred pursuant to federal or
state rules or regulations.

(K) "Phase-in-recovery property" means the property, rights,
and interests of an electric distribution utility or an assignee
under a final financing order, including the right to impose,
charge, and collect the phase-in-recovery charges that shall be
used to pay and secure the payment of phase-in-recovery bonds and
financing costs, and including the right to obtain adjustments to
those charges, and any revenues, receipts, collections, rights to
payment, payments, moneys, claims, or other proceeds arising from
the rights and interests created under the final financing order.

(M) "Successor" means, with respect to any entity, another
entity that succeeds by operation of law to the rights and
obligations of the first legal entity pursuant to any bankruptcy,
reorganization, restructuring, or other insolvency proceeding, any
merger, acquisition, or consolidation, or any sale or transfer of
assets, regardless of whether any of these occur as a result of a
restructuring of the electric power industry or otherwise.

Sec. 4928.231. (A) An electric distribution utility may apply
to the public utilities commission for a financing order that
authorizes the following:

(1) The issuance of phase-in-recovery bonds, in one or more
series, to recover uncollected phase-in costs;

(2) The imposition, charging, and collection of phase-in-
recovery charges, in accordance with the adjustment mechanism
approved by the commission under section 4928.232 of the Revised
Code, and consistent with the commission's authority regarding
governmental aggregation as provided in division (I) of section
4928.20 of the Revised Code, to recover both of the following:

(a) Uncollected phase-in costs;

(b) Financing costs.

(3) The creation of phase-in-recovery property under the
financing order.

(B) The application shall include all of the following:

(1) A description of the uncollected phase-in costs that the
electric distribution utility seeks to recover through the
issuance of phase-in-recovery bonds;

(2) An estimate of the date each series of phase-in-recovery
bonds are expected to be issued;

(3) The expected term during which the phase-in costs
associated with the issuance of each series of phase-in-recovery
bonds are expected to be recovered;

(4) An estimate of the financing costs, as described in
section 4928.23 of the Revised Code, associated with the issuance
of each series of phase-in-recovery bonds;

(5) An estimate of the amount of phase-in-recovery charges
necessary to recover the phase-in costs and financing costs set
forth in the application and the calculation for that estimate,
which calculation shall take into account the estimated date or
dates of issuance and the estimated principal amount of each
series of phase-in-recovery bonds;

(6) For phase-in-recovery charges not subject to allocation
according to an existing order, a proposed methodology for
allocating phase-in-recovery charges among customer classes,
including a proposed methodology for allocating such charges to
governmental aggregation customers based upon the proportionate
benefit determination made under division (I) of section 4928.20
of the Revised Code;

(7) A description of a proposed adjustment mechanism for use
as described in division (A)(2) of this section;

(8) A description and valuation of how the issuance of the
phase-in-recovery bonds, including financing costs, will both
result in cost savings to customers and mitigate rate impacts to
customers when compared to the use of other financing mechanisms
or cost-recovery methods available to the electric distribution
utility;

(9) Any other information required by the commission.

(C) The electric distribution utility may restate or
incorporate by reference in the application any information
required under division (B)(9) of this section that the electric
distribution utility filed with the commission under section
4909.18 or sections 4928.141 to 4928.144 of the Revised Code or
section 4928.14 of the Revised Code as it existed prior to July
31, 2008.

Sec. 4928.232. (A) Proceedings before the public utilities
commission on an application submitted by an electric distribution
utility under section 4928.231 of the Revised Code shall be
governed by Chapter 4903. of the Revised Code, but only to the
extent that chapter is not inconsistent with this section or
section 4928.233 of the Revised Code. Any party that participated
in the proceeding in which phase-in costs were approved under
section 4909.18 or sections 4928.141 to 4928.144 of the Revised
Code or section 4928.14 of the Revised Code as it existed prior to
July 31, 2008, shall have standing to participate in proceedings
under sections 4928.23 to 4928.2318 of the Revised Code.

(B) Within thirty days after the filing of an application
under section 4928.231 of the Revised Code, the commission shall
publish a schedule of the proceeding.

(C)(1) Not later than one hundred thirty-five days after the
date the application is filed, the commission shall issue either a
financing order, granting the application in whole or with
modifications, or an order suspending or rejecting the
application.

(2) If the commission suspends an application for a financing
order, the commission shall notify the electric distribution
utility of the suspension and may direct the electric distribution
utility to provide additional information as the commission
considers necessary to evaluate the application. Not later than
ninety days after the suspension, the commission shall issue
either a financing order, granting the application in whole or
with modifications, or an order rejecting the application.

(D)(1) The commission shall not issue a financing order under
division (C) of this section unless the commission determines that
the financing order is consistent with section 4928.02 of the
Revised Code.

(2) Except as provided in division (D)(1) of this section,
the commission shall issue a financing order under division (C) of
this section if, at the time the financing order is issued, the
commission finds that the issuance of the phase-in-recovery bonds
and the phase-in-recovery charges authorized by the order will
result in measurable cost savings to customers and will mitigate
rate impacts to customers as compared with traditional financing
mechanisms or traditional cost-recovery methods available to the
electric distribution utility.

(E) The commission shall include all of the following in a
financing order issued under division (C) of this section:

(1) A determination of the maximum amount and a description
of the phase-in costs that may be recovered through
phase-in-recovery bonds issued under the financing order;

(2) A description of phase-in-recovery property, the creation
of which is authorized by the financing order;

(3) A description of the financing costs that may be
recovered through phase-in-recovery charges and the period over
which those costs may be recovered;

(4) For phase-in-recovery charges not subject to allocation
according to an existing order, a description of the methodology
and calculation for allocating phase-in-recovery charges among
customer classes, including the allocation of such charges, if
any, to governmental aggregation customers based upon the
proportionate benefit determination made under division (I) of
section 4928.20 of the Revised Code;

(5) A description of the adjustment mechanism for use in the
imposition, charging, and collection of the phase-in-recovery
charges;

(6) The maximum term of the phase-in-recovery bonds;

(7) Any other provision the commission considers appropriate
to ensure the full and timely imposition, charging, collection,
and adjustment, pursuant to an approved adjustment mechanism, of
the phase-in-recovery charges described in divisions (E)(3) to (5)
of this section.

(F) The commission may, in a financing order, afford the
electric distribution utility flexibility in establishing the
terms and conditions for the phase-in-recovery bonds to
accommodate changes in market conditions, including repayment
schedules, interest rates, financing costs, collateral
requirements, required debt service and other reserves, and the
ability of the electric distribution utility, at its option, to
effect a series of issuances of phase-in-recovery bonds and
correlated assignments, sales, pledges, or other transfers of
phase-in-recovery property. Any changes made under this section to
terms and conditions for the phase-in-recovery bonds shall be in
conformance with the financing order.

(G) A financing order may provide that the creation of
phase-in-recovery property shall be simultaneous with the sale of
that property to an assignee as provided in the application and
the pledge of the property to secure phase-in-recovery bonds.

(H) The commission shall, in a financing order, require that
after the final terms of each issuance of phase-in-recovery bonds
have been established, and prior to the issuance of those bonds,
the electric distribution utility shall determine the resulting
phase-in-recovery charges in accordance with the adjustment
mechanism described in the financing order. These
phase-in-recovery charges shall be final and effective upon the
issuance of the phase-in-recovery bonds, without further
commission action.

Sec. 4928.233. (A) Any party to a proceeding under section
4928.232 of the Revised Code may apply to the public utilities
commission for rehearing of an order within thirty days after the
date of the issuance of the order.

(B) Within sixty days after the issuance of an order after
rehearing or a decision denying an application for rehearing, any
party to the proceeding may file a notice of appeal with the
supreme court. Any such notice of appeal shall be served as
provided for in section 4903.13 of the Revised Code.

Because delay in the determination of the appeal will delay
the issuance of phase-in-recovery bonds, thereby diminishing
savings to customers that might be achieved if the bonds were
issued under a final financing order, the supreme court shall
proceed to hear and determine the action as expeditiously as
practicable and shall give the action precedence over other
matters not accorded similar precedence by law.

(C) Any review on appeal for a financing order issued under
section 4928.232 of the Revised Code shall be governed by Chapter
4903. of the Revised Code.

(D) If any phase-in costs are, or if any financing order is,
subject to review by the commission or the supreme court, the
electric distribution utility may not issue any phase-in-recovery
bonds based on those costs or that financing order until all
appellate reviews, including any appellate review following a
commission decision on remand, have been exhausted.

(E) A financing order shall become final and take effect as
follows:

(1) On the expiration of the thirty-day period after the date
the commission issues the financing order, if no application for
rehearing is filed with the commission within that period;

(2) On the expiration of the sixty-day period after the
denial of the application for rehearing, if no notice of appeal is
filed with the supreme court within that period;

(3) On the expiration of the sixty-day period after the
commission issues an order after rehearing that approves or
modifies and approves the financing order, if no notice of appeal
is filed with the supreme court within that period;

(4) On the expiration of the ten-day period after the date
that the supreme court judgment entry or order that affirms or
modifies and affirms a financing order is filed with the clerk,
including any such order issued by the court following a
commission decision on remand, if no motion for reconsideration is
filed within that period;

(5) On the date the supreme court order denying a motion for
reconsideration of a judgment entry or order that affirmed or
modified and affirmed a financing order is filed with the clerk;

(6) On the date the supreme court judgment entry or order
issued after reconsideration of a judgment entry or order that
affirmed or modified and affirmed a financing order is filed with
the clerk;

(7) On the applicable effective date under division (E)(1),
(2), or (3) of this section regarding a financing order remanded
to the commission.

Sec. 4928.234. (A) The phase-in-recovery property created in
a final financing order may be transferred, sold, conveyed, or
assigned to any person or entity not affiliated with the electric
distribution utility subject to the final financing order or to
any affiliate of the electric distribution utility created for the
limited purpose of acquiring, owning, or administering that
property, issuing phase-in-recovery bonds under the final
financing order, or a combination of these purposes.

(B) All or any portion of the phase-in-recovery property may
be pledged to secure the payment of phase-in-recovery bonds,
amounts payable to financing parties and bondholders, amounts
payable under any ancillary agreement, and other financing costs.

(C) The phase-in-recovery property shall constitute an
existing, present property right, notwithstanding any requirement
that the imposition, charging, and collection of phase-in-recovery
charges depend on the electric distribution utility continuing to
deliver retail electric distribution service or continuing to
perform its servicing functions relating to the collection of
phase-in-recovery charges or on the level of future energy
consumption. That property shall exist regardless of whether the
phase-in-recovery charges have been billed, have accrued, or have
been collected, and notwithstanding any requirement that the value
or amount of the property is dependent on the future provision of
service to customers by the electric distribution utility.

(D) All such phase-in-recovery property shall continue to
exist until the phase-in-recovery bonds issued under the final
financing order are paid in full and all financing costs relating
to the bonds have been paid in full.

Sec. 4928.235. (A)(1) A final financing order shall remain
in effect until the phase-in-recovery bonds issued under the final
financing order and all financing costs related to the bonds have
been paid in full.

(2) A final financing order shall remain in effect and
unabated notwithstanding the bankruptcy, reorganization, or
insolvency of the electric distribution utility or any affiliate
of the electric distribution utility or the commencement of any
judicial or nonjudicial proceeding on the final financing order.

(B) A final financing order is irrevocable and the public
utilities commission may not reduce, impair, postpone, or
terminate the phase-in-recovery charges authorized in the final
financing order or impair the property or the collection or
recovery of phase-in costs.

(C)(1) Except as provided in division (C)(2) of this section,
under a final financing order, the electric distribution utility
retains sole discretion regarding whether to assign, sell, or
otherwise transfer phase-in-recovery property, or to cause
phase-in-recovery bonds to be issued, including the right to defer
or postpone such assignment, sale, transfer, or issuance.

(2) Subsequent to a financing order being issued or becoming
final and taking effect, but before phase-in-recovery bonds have
been issued, if market conditions are such that customers will not
realize cost savings from the issuance of the phase-in-recovery
bonds, the electric distribution utility shall not proceed with
the securitization under the issued or final financing order.

Sec. 4928.236. At the request of the electric distribution
utility subject to a final financing order, the public utilities
commission may commence a proceeding and issue a subsequent
financing order that provides for retiring and refunding
phase-in-recovery bonds issued under the final financing order if
the commission finds that the subsequent financing order satisfies
all of the requirements of section 4928.232 of the Revised Code.
Effective on retirement of the refunded phase-in-recovery bonds
and the issuance of new phase-in-recovery bonds, the commission
shall adjust the related phase-in-recovery charges accordingly.

Sec. 4928.237. (A) The public utilities commission, in
exercising the commission's powers and carrying out the
commission's duties regarding regulation and ratemaking, may not
do any of the following:

(1) Consider phase-in-recovery bonds issued under a final
financing order to be the debt of the electric distribution
utility subject to the final financing order;

(2) Consider the phase-in-recovery charges imposed, charged,
or collected under the final financing order to be revenue of the
electric distribution utility;

(3) Consider the phase-in costs or financing costs authorized
under the final financing order to be the costs of the electric
distribution utility.

(B) The commission may not order or otherwise require,
directly or indirectly, any electric distribution utility to use
phase-in-recovery bonds to finance the recovery of phase-in costs.

(C) The commission may not refuse to allow the recovery of
phase-in costs solely because the electric distribution utility
has elected or may elect to finance those costs through a
financing mechanism other than the issuance of phase-in-recovery
bonds.

If the electric distribution utility elects not to finance
those costs through the issuance of phase-in-recovery bonds as
authorized in the final financing order, those costs shall be
recovered as authorized by the commission prior to the application
for the financing order.

Sec. 4928.238. (A) An electric distribution utility subject
to a final financing order shall file with the public utilities
commission, at least annually, or more frequently as provided in
the final financing order, a schedule applying the approved
adjustment mechanism to the phase-in-recovery charges authorized
under the final financing order, based on estimates of consumption
for each customer class and other mathematical factors. The
electric distribution utility shall submit with the schedule a
request for approval to make the adjustments to the
phase-in-recovery charges in accordance with the schedule.

(B) The commission's review of the request shall be limited
to a determination of whether there is any mathematical error in
the application of the adjustment mechanism to the
phase-in-recovery charges, including the calculation of any
proportionate charges allocated to governmental aggregation
customers as directed in the final financing order.

(C) A request submitted under division (A) of this section
shall be deemed approved, and the adjustments shall go into
immediate effect, if not approved by the commission within sixty
days after the request is submitted.

(D) No adjustment approved or deemed approved under this
section shall in any way affect the irrevocability of the final
financing order as specified in section 4928.235 of the Revised
Code.

Sec. 4928.239. (A) As used in this section, "nonbypassable,"
with respect to phase-in-recovery charges, means that such charges
cannot be avoided by any customer or other person obligated to pay
the charges.

(B)(1) As long as phase-in-recovery bonds issued under a
final financing order are outstanding and the related phase-in
costs and financing costs have not been recovered in full, the
phase-in-recovery charges authorized under the final financing
order shall be nonbypassable. Subject to the methodology approved
in the final financing order pursuant to division (E)(4) of
section 4928.232 of the Revised Code, phase-in-recovery charges
shall apply to all customers of the electric distribution utility
for as long as they remain customers of the electric distribution
utility, except as provided in division (B)(2) of this section. If
a customer of the electric distribution utility purchases electric
generation service from a competitive retail electric service
provider, the electric distribution utility shall collect the
phase-in-recovery charges directly from that customer.

(2) If a customer of the electric distribution utility
subsequently receives retail electric distribution service from
another electric distribution utility operating in the same
service area, including by succession, assignment, transfer, or
merger, the phase-in-recovery charges shall continue to apply to
that customer.

(C) The phase-in-recovery charges shall be collected by the
electric distribution utility or the electric distribution
utility's successors or assignees, or a collection agent, in full
through a charge that is separate and apart from the electric
distribution utility's base rates.

Sec. 4928.2310. (A)(1) If an electric distribution utility
subject to a final financing order defaults on any required
payment of phase-in-recovery revenues, a court, upon application
by an interested party and without limiting any other remedies
available to the applicant, shall order the sequestration and
payment of the revenues for the benefit of bondholders, any
assignee, and any financing parties. The court order shall remain
in full force and effect notwithstanding any bankruptcy,
reorganization, or other insolvency proceedings with respect to
the electric distribution utility or any affiliate.

(2) Notwithstanding division (A)(1) of this section,
customers of an electric distribution utility shall be held
harmless for the electric distribution utility's failure to remit
any required payment of phase-in-recovery revenues, and such
failure shall in no way affect the phase-in-recovery property or
the rights to impose, collect, and adjust the phase-in-recovery
charges under sections 4928.23 to 4928.2318 of the Revised Code.

(B) Phase-in-recovery property under a final financing order
and the interests of an assignee, bondholder, or financing party
in that property under a financing agreement are not subject to
setoff, counterclaim, surcharge, or defense by the electric
distribution utility subject to the final financing order or any
other person, including as a result of the electric distribution
utility's failure to provide past, present, or future services, or
in connection with the bankruptcy, reorganization, or other
insolvency proceeding of the electric distribution utility, any
affiliate, or any other entity.

Sec. 4928.2311. Any successor to an electric distribution
utility subject to a final financing order shall be bound by the
requirements of sections 4928.23 to 4928.2317 of the Revised Code.
The successor shall perform and satisfy all obligations of the
electric distribution utility under the final financing order, in
the same manner and to the same extent as the electric
distribution utility, including the obligation to collect and pay
phase-in-recovery revenues to the person entitled to receive those
revenues. The successor shall have the same rights of the electric
distribution utility under the final financing order, in the same
manner and to the same extent as the electric distribution
utility.

Sec. 4928.2312. (A) Except as provided in division (C) of
this section, the creation, perfection, and enforcement of any
security interest in phase-in-recovery property under a final
financing order to secure the repayment of the principal of and
interest on phase-in-recovery bonds, amounts payable under any
ancillary agreement, and other financing costs are governed by
this section and not Chapters 1301. to 1309. of the Revised Code.

(B) The description of the phase-in-recovery property in a
transfer or security agreement and a financing statement is
sufficient only if the description refers to this section and the
final financing order creating the property. This section applies
to all purported transfers of, and all purported grants of, liens
on or security interests in that property, regardless of whether
the related transfer or security agreement was entered into, or
the related financing statement was filed, before or after the
effective date of this section.

(C)(1) A security interest in phase-in-recovery property
under a final financing order is created, valid, and binding at
the latest of the date that the security agreement is executed and
delivered or the date that value is received for the
phase-in-recovery bonds.

(2)(a) The security interest shall attach without any
physical delivery of collateral or other act, and, upon the filing
of the financing statement with the office of the secretary of
state, the lien of the security interest shall be valid, binding,
and perfected against all parties having claims of any kind in
tort, contract, or otherwise against the person granting the
security interest, regardless of whether the parties have notice
of the lien. Also upon this filing, a transfer of an interest in
the phase-in-recovery property shall be perfected against all
parties having claims of any kind, including any judicial lien or
other lien creditors or any claims of the seller or creditors of
the seller, other than creditors holding a prior security
interest, ownership interest, or assignment in the property
previously perfected in accordance with this division.

(b) The secretary of state shall maintain any financing
statement filed under division (C)(2) of this section in the same
manner that the secretary maintains financing statements filed by
transmitting utilities under division (B) of section 1309.501 of
the Revised Code. The filing of any financing statement under
division (C)(2) of this section shall be governed by the
provisions regarding the filing of financing statements in Chapter
1309. of the Revised Code.

(D)(1) A security interest in phase-in-recovery property
under a final financing order is a continuously perfected security
interest and has priority over any other lien, created by
operation of law or otherwise, that may subsequently attach to
that property or those rights or interests unless the holder of
any such lien has agreed in writing otherwise.

(2) The priority of a security interest in phase-in-recovery
property is not affected by the commingling of phase-in-recovery
revenues with other amounts. Any pledgee or secured party shall
have a perfected security interest in the amount of all
phase-in-recovery revenues that are deposited in any cash or
deposit account of the electric distribution utility in which
phase-in-recovery revenues have been commingled with other funds.
Any other security interest that may apply to those funds shall be
terminated when the funds are transferred to a segregated account
for an assignee or a financing party.

(3) No application of the adjustment mechanism as described
in section 4928.238 of the Revised Code shall affect the validity,
perfection, or priority of a security interest in or the transfer
of phase-in-recovery property under the final financing order.

Sec. 4928.2313. (A) Any sale, assignment, or transfer of
phase-in-recovery property under a final financing order shall be
an absolute transfer and true sale of, and not a pledge of or
secured transaction relating to, the seller's right, title, and
interest in, to, and under the property, if the documents
governing the transaction expressly state that the transaction is
a sale or other absolute transfer. A transfer of an interest in
that property may be created only when all of the following have
occurred:

(1) The financing order has become final and taken effect.

(2) The documents evidencing the transfer of the property
have been executed and delivered to the assignee.

(3) Value has been received for the property.

(B) The characterization of the sale, assignment, or transfer
as an absolute transfer and true sale and the corresponding
characterization of the property interest of the purchaser shall
be effective and perfected against all third parties and shall not
be affected or impaired by, among other things, the occurrence of
any of the following:

(1) Commingling of phase-in-recovery revenues with other
amounts;

(2) The retention by the seller of either of the following:

(a) A partial or residual interest, including an equity
interest, in the phase-in-recovery property, whether direct or
indirect, or whether subordinate or otherwise;

(b) The right to recover costs associated with taxes,
franchise fees, or license fees imposed on the collection of
phase-in-recovery revenues.

(3) Any recourse that the purchaser or any assignee may have
against the seller;

(4) Any indemnification rights, obligations, or repurchase
rights made or provided by the seller;

(5) The obligation of the seller to collect phase-in-recovery
revenues on behalf of an assignee;

(6) The treatment of the sale, assignment, or transfer for
tax, financial reporting, or other purposes;

(7) Any application of the adjustment mechanism under the
final financing order.

Sec. 4928.2314. (A) The transfer and ownership of
phase-in-recovery property and the imposition, charging,
collection, and receipt of phase-in-recovery revenues under
sections 4928.231 to 4928.2317 of the Revised Code are exempt from
all taxes and similar charges imposed by the state or any county,
municipal corporation, school district, local authority, or other
subdivision.

(B) Phase-in-recovery bonds issued under a final financing
order shall not constitute a debt or a pledge of the faith and
credit or taxing power of this state or of any county, municipal
corporation, or any other political subdivision of this state.
Bondholders shall have no right to have taxes levied by this state
or the taxing authority of any county, municipal corporation, or
any other political subdivision of this state for the payment of
the principal of or interest on the bonds. The issuance of
phase-in-recovery bonds does not, directly, indirectly, or
contingently, obligate this state or any county, municipal
corporation, or political subdivision of this state to levy any
tax or make any appropriation for payment of the principal of or
interest on the bonds.

Sec. 4928.2315. (A) The state pledges to and agrees with the
bondholders, any assignee, and any financing parties under a final
financing order that the state will not take or permit any action
that impairs the value of phase-in-recovery property under the
final financing order or revises the phase-in costs for which
recovery is authorized under the final financing order or, except
as allowed under section 4928.238 of the Revised Code, reduce,
alter, or impair phase-in-recovery charges that are imposed,
charged, collected, or remitted for the benefit of the
bondholders, any assignee, and any financing parties, until any
principal, interest, and redemption premium in respect of
phase-in-recovery bonds, all financing costs, and all amounts to
be paid to an assignee or financing party under an ancillary
agreement are paid or performed in full.

(B) Any person who issues phase-in-recovery bonds is
permitted to include the pledge specified in division (A) of this
section in the phase-in-recovery bonds, ancillary agreements, and
documentation related to the issuance and marketing of the
phase-in-recovery bonds.

Sec. 4928.2316. (A) The law governing the validity,
enforceability, attachment, perfection, priority, and exercise of
remedies with respect to the transfer of phase-in-recovery
property under a final financing order, or creation of a security
interest in any such property, phase-in-recovery charges, or final
financing order shall be the laws of this state as set forth in
sections 4928.23 to 4928.2318 of the Revised Code.

(B) This section shall control in the event of a conflict
between sections 4928.23 to 4928.2317 of the Revised Code and any
other law regarding the attachment, assignment, or perfection, the
effect of perfection, or priority of any security interest in or
transfer of phase-in-recovery property under a final financing
order.

Sec. 4928.2317. If any provision of sections 4928.23 to
4928.2318 of the Revised Code is held to be invalid or is
superseded, replaced, repealed, or expires for any reason, that
occurrence shall not affect any action allowed under those
sections that is taken prior to that occurrence by the public
utilities commission, an electric distribution utility, an
assignee, a collection agent, a financing party, a bondholder, or
a party to an ancillary agreement. Any such action shall remain in
full force and effect.

Sec. 4928.2318. An assignee or financing party shall not be
considered an electric distribution utility or person providing
electric service by virtue of engaging in the transactions
described in sections 4928.23 to 4928.2313 of the Revised Code.

Section 2. That existing sections 4928.143 and 4928.20 of
the Revised Code are hereby repealed.